Fox Says FCC Profanity Policy Is Indefensible

Fox calls two assertions it attributes to the FCC "stunning": 1) that the quid pro quo for an FCC license is broadcasters having to live with a poorly-articulated indecency standard and 2) that Fox is under an obligation to defend the artistic merit of speech.

Taken to their logical extremes, says Fox, such assertions stand the First Amendment "on its head," even render it moot in the broadcast context.

Those and other choice words, all of them printable, came in Fox's reply comments to the U.S. Court of Appeals for the Second Circuit. Fox's conclusion: The FCC will never be able to justify its fleeting profanity policy.

"The Supreme Court has long held that broadcasters do not give up their free speech rights when they accept a broadcasting license," and the network indicated it has not intention of doing so. The FCC may wish it had "limitless" indecency enforcement authority," said the network, but the constititution prevents such an arbitrary exercise of power.

As to having to defend the artistic merit of the F-words and S-words that slipped through--Fox edited them out of a West Coast feed--was what made Fox paint the picture of FCC Chairman Julius Genachowski doing a headstand. "[The] notion that a broadcaster is under any obligation to defend the merits of its speech in the face of the government’s content-based censorship stands the First Amendment on its head—it is the FCC that must justify its indecency enforcement regime, not Fox that must justify the value of its speech."

The FCC argued in its brief that because it did not sanction Fox, and was simply giving direction on what it would find indecent in the future, it was not required to take Fox's intent into account. Fox countered that intent was central to an indency finding, and cannot be dismissed with the wave of a rhetorical wand.

"It makes no difference whether the general aim of the Remand Order was to provide guidance to the broadcasting industry about the FCC’s new indecency standards," says Fox in its brief. "If the FCC wants to provide guidance, it should pursue rulemaking. If it chooses to declare individual broadcasts to be in violation of a criminal statute, then it must make the requisite findings. The FCC concedes that it did not make a finding of scienter [intent] and that is reason enough to set aside the order in this case."

The court is taking another crack at the case, likely this time reaching constitutional issues. That comes after the Supreme Court said the Second Circuit was wrong to have held that the FCC had failed to justify its fleeting profanity finding against Fox for swearing in awards shows. The Supremes said the FCC's justification was not arbitrary and capricious and remanded the case back to the court.

The commission also said indecency regulation is still necessary to "ensure that parents can construct "a relatively safe haven for their children."

Fox counters that the indecency regime it has crafted is indefensible: "The FCC will never be able to develop the sort of intelligible standards for distinguishing among scores of borderline cases involving an isolated or fleeting use of potentially offensive words that would give the industry sufficient guidance as to what is prohibited," said the network. "This is precisely what the First Amendment prohibits."

The FCC has also defended its decision in the Janet Jackson case and asked that court--the Third Circuit in Philadelphia--to let it build an even stronger case against CBS. The Supreme Court has remanded that decision--that the FCC's fine was arbitrary and capricious--back to the court as well.